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Oliphant Decision Led to Jurisdictional Issues on Indian Reservations

Duane Champagne

1/7/12

In 1973, during the annual celebration of the Suquamish Indian Tribe, Mark David Oliphant, a non-tribal member, was arrested and charged with assaulting a tribal police officer and resisting arrest. At the same Suquamish tribal event, Daniel B. Belgarde was arrested under the tribal law and order code for recklessly endangering another person and injuring tribal property.

Belgarde led tribal police on a high-speed chase that ended in a collision with a tribal police car. Both Belgarde and Oliphant argued that the Suquamish tribal court did not have jurisdiction over non-tribal members. By 1978, the case ended up in the U.S. Supreme Court, which in a split decision ruled that tribal courts do not have criminal jurisdiction over non-Indians.

Lawyers for the tribe argued that tribal governments have inherent powers of self-government, and one of those powers was the right to extend judicial authority over all people on tribal or reservation territory. Tribal lawyers noted that the United States can only overrule tribal government powers if Congress or treaties explicitly withdrew such powers from tribal governments. There was no explicit treaty or congressional language constraining tribal court jurisdictions over non-Indians. The tribal lawyers argued that the ability of tribal governments to maintain law and order over the people on tribal territory was a fundamental and necessary part of government. Tribal governments should retain jurisdiction over all people, including non-Indians, when living or visiting Indian reservations.

Justice Thurgood Marshall dissents the Oliphant decision, saying he believes that the right to punish all individuals who commit crimes against tribal law within the reservation is a necessary aspect of the tribes sovereignty. He states: “I agree with the court below that the ‘power to preserve order on the reservation . . . is a sine qua non of the sovereignty that the Suquamish originally possessed.’ In the absence of affirmative withdrawal by treaty or statute, I am of the view that Indian tribes enjoy, as a necessary aspect of their retained sovereignty, the right to try and punish all persons who commit offenses against tribal law within the reservation. Accordingly, I dissent.” (AP Photo)

A Supreme Court majority rejected the inherent rights argument in favor of tribal jurisdiction over non-Indians. The majority argued that treaties and congressional acts were not the only means by which the United States could take away inherent powers from tribal governments. The Supreme Court cited a series of laws, which excluded non-tribal members from tribal laws and jurisdiction. The majority on the court adopted the view that the United States never intended to put U.S. citizens under the legal jurisdiction of tribal governments. Therefore, tribal courts did not have jurisdiction over criminal cases involving non-Indians.

The Oliphant case has been a major barrier to exercising tribal sovereignty and maintaining tribal law and order on reservation communities, many of which have a majority of non-Indian residents. Because of the Oliphant decision, tribal governments are concerned that reservation communities are subject to increased risk of lawlessness. For example, non-tribal drug dealers and meth producers are more likely to operate on Indian reservations where they believe law enforcement is less comprehensive and not directed to non-Indians. Both federal and county-state police and courts provide fewer justice services to tribal than non-tribal communities, which increases likelihood of greater non-containment of crime on Indian reservations.

Some states, like Oregon, Wisconsin, Minnesota and others, have increased the ability of tribal police to contain reservation crime through powers of cross-deputization. In the cross-deputization agreements, tribal police officers are empowered to make arrests of non-Indian criminal law violators under state law. Usually the tribal officers are trained to the same standards as county-state police, and some accommodation made for tribal government responsibility for liability issues. Non-Indian U.S. citizens are arrested on reservations under county-state laws and their civil rights are upheld. Non-Indian criminal suspects are taken to county-state courts and incarceration facilities.

State legislation and tribal government cooperative agreements create working government-to-government relations between county-state and tribal governments. County-state and tribal police act in cooperation, which increases overall capability for maintaining law and order on and near Indian reservations. With cross-deputization powers, tribal police departments are more effective in keeping law and order on reservations. Tribal laws, however, are not enforced on non-Indian criminal suspects. Nevertheless, tribal governments could ask county-state governments to pass criminal laws that apply to non-Indians and support public safety issues for tribal communities.

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